LONGMONT -- The Longmont Urban Renewal Authority gave its final argument Monday in a court battle for the title to Dillard's, but also said it would pull back from seeking that title if it got a Nov. 18 condemnation hearing.

In a filing to the Boulder District Court, LURA attorneys Robert Duncan, Donald Ostrander and James Birch said they would not need to pursue the title if the court could hear the condemnation quickly, but that Nov.18 was the latest acceptable date.

"A Nov. 18 trial date is not ideal." the attorneys wrote. "An earlier trial date would be better in terms of moving the redevelopment project forward. However, a Nov. 18 trial date would avoid putting the Twin Peaks Mall redevelopment in jeopardy."

That trial is expected to last five days.

The mall's owner, NewMark Merrill Mountain States, plans an $80 million redevelopment of Twin Peaks. But Dillard's, an anchor store that owns its own building and land, holds an agreement that allows it to veto any changes to the mall.

After negotiations -- first by NewMark, then by Longmont -- fell through, LURA filed a petition to condemn the property, asking Judge D.D. Mallard to grant LURA the store's title and immediate possession so the project could go ahead.

Dillard's attorney Leslie Fields has asked the court to dismiss the case and to bar an immediate transfer of title to LURA, arguing that the laws permitting a "vesting" of title are unconstitutional.

Advertisement

"Divesting someone of their title leads to irreparable harms that a monetary security deposit will likely not protect against," Fields wrote in a closing argument filed last week. "Once that occurs, there is nothing the condemning entity can do to unwind the damage it has caused to the landowner."

Fields also accused Longmont of pursuing the condemnation for economic motives -- something barred by state law -- and argued that the city could cure blight at the Twin Peaks Mall without condemning Dillard's.

In their final response, the LURA attorneys reiterated that the law allows LURA to acquire the title and transfer it to NewMark to cure blight at the Twin Peaks Mall, and that the blight could not be cured without either Dillard's agreement or the title. While the store claimed "bad faith" on Longmont's part, the LURA attorneys wrote, it had yet to prove it.

"There is no evidence of any 'ulterior motive' by this administration," the LURA attorneys argued. "(D)espite the hyperbole in Dillard's closing statement, the evidence and the applicable legal authorities show LURA is entitled to proceed with eminent domain."

The case now goes to Mallard, who has not yet said when she will rule on the title question or set the date for the condemnation hearing. If the case is not dismissed, a jury would determine how much LURA will have to pay Dillard's for the property.

A 2012 blight study found 10 blight factors present at the mall. Under state law, at least five factors must be found to proceed with condemnation. The law does not require that Dillard's itself be blighted, LURA's attorneys said -- and even if it did, they argued, between six and eight factors were found at the store, or five to seven if the store's title was not considered a blight factor.

That title has been a sparring point, with NewMark Merrill Mountain States managing partner Allen Ginsborg saying such restrictive agreements were dying out as a practice, while Dillard's vice president of real estate Chris Johnson said the veto rights were still common for anchor stores. In testimony, Johnson said Ginsborg's stubbornness brought negotiations to a halt, and that in his own experience, those veto rights didn't block agreements from being reached.

In their own rebuttal, LURA's attorneys noted that Johnson's has only 10 months' experience as vice president of real estate -- he previously worked in the accounting division -- and that Ginsborg had successfully reached agreements with Whole Foods, Sam's Club and Regal Cinemas that did not include veto rights.

In her closing arguments last week, Fields noted that LURA director Brad Power had not done a blight study in 10 years -- before major changes to the urban renewal laws -- and that the study's principal author, David Starnes, had not done one at all. LURA's attorneys responded that Power knew of the changes to the law and had said so in court, and that Starnes had 10 years of consulting experience working with cities and states to "evaluate a variety of properties for conditions of blight."

Even if Dillard's believed an agreement could have been reached, the LURA attorneys wrote, they had already had plenty of time to do so.

"Dillard's knew the Twin Peaks Mall Urban Renewal Area had been found blighted, knew the redevelopment process was moving forward, and had ample opportunity to reach an agreement during the negotiations that lasted more than a year," the attorneys wrote. "If all it takes to defeat an urban renewal eminent domain case is a landowner stating its subjective belief that further negotiation with a third party would prove fruitful, no urban renewal agency could ever exercise the power of eminent domain."

"Dismissal of this case," they wrote, "would effectively end the redevelopment project."

MacIntyre feels Colorado is capable of making run at bowl gameCU BUFFS FALL CAMPWhen: 29 practices beginning Wednesday morning 8:30-11 a.m. Wednesday, Thursday, Friday and Saturday practices are open to the media and public next week. Full Story

MacIntyre feels Colorado is capable of making run at bowl gameCU BUFFS FALL CAMPWhen: 29 practices beginning Wednesday morning 8:30-11 a.m. Wednesday, Thursday, Friday and Saturday practices are open to the media and public next week. Full Story

It didn't take long for Denver music observers to notice Plume Varia. Husband and wife Shon and Cherie Cobbs formed the band only two years ago, but after about a year they started finding themselves on best-of lists and playing the scene's top venues. Full Story